Since 1st January 2001, electronic signatures are admissible before the courts. The Civil Code, which is almost two hundred years old, has been updated by the Law of 20th October 2000 in order to allow judges the flexibility not to automatically reject electronic signatures. Furthermore, the law containing the legal framework for certification-service-providers has been adopted, implementing the 1999/93/EC Directive which came into force on 9th October 2001 and completes the previous law. In this article we will examine those laws and the practical consequences of those laws on companies.
There are some areas where the Law is so archaic that change seems unthinkable. Electronic signature is one of those areas. Principles that govern signatures stem from the Napoleonic Civil Code of 1804. Until now, the legislator has considered hand written signatures as one of the best evidence of identity of the author of an act and of his consent to the content of the act. It was necessary for the law to widen the old definition of manual signatures to encompass electronic signatures.
The evolution of computer science and open networks technology (of which the internet is the best example) have caused problems for the security of electronic exchanges between people, in particular when those people have never met or spoken to each other before. For the past few years, efficient systems of signature and cryptography had been developed to remedy this problem. These systems are currently very reliable. They often use two cryptographic keys, one public and the other private. The holder of the signature keeps the latter secret. When a person or a company wishes to sign a document, he just has to use his private key. This can be done with a few clicks of the mouse. The public key of the person who is signing, which as the name "public key" indicates is made public and allows verification that the text has been duly signed (by the said person) and has not undergone any change. An electronic certificate delivered by a third party (the certification-service-provider) confirms the "ownership" of the keys so that it is not possible to be mistaken about the identity of the person's signature of an electronic document.
The electronic signature with double key cryptography is called a digital signature. Digital signatures are therefore a type of electronic signature. They are widely used at the moment on the internet.
In Belgium, for example, you can easily obtain an electronic (digital) signature from Globalsign, Verisign, Isabel and even Belgacom. Other bodies could soon offer electronic signature services (notaries, administrations, etc.).
Digital signatures have many advantages: a higher technical reliability than manual signatures (which have always been possible to imitate), the possibility to execute contracts easily, quickly and at a distance. In addition, the document integrity function, means that the receiver can be assured that the entire document has been signed. There is no longer the need to initial each page of the contract. Electronic signatures also offer possibilities for the archiving of documents which can be useful when one sees the volume of "paper" documents which are stored by companies. Documents can from now on be electronically signed and stored on a hard disk.
Belgian Law now legally recognises electronic signatures. Previously, the notion of electronic signatures was non-existent. As from now, these may be considered as a signature in accordance with the new article 1322 of the Civil code which states that "un ensemble de données électroniques pouvant être imputé à une personne déterminée et établissant le maintien de l'intégrité du contenu de l'acte" - "een geheel van elektronische gegevens dat aan een bepaalde persoon kan worden toegerekend en het behoud van de integriteit van de inhoud van de akte aantoont" (a group of electronic data that can be assigned to a specific person and establishes the preservation of the integrity of the act). In other words, since the beginning of last year, the integrity of the act of a person whose signature is in line with those two functions of identification can no longer be purely and simply rejected by the judge.
The legal recognition of electronic signatures is important because it gives legal security to the signed document. How can an acknowledgement of a debt be accepted by email if one knows in advance that judges will not consider the email as admissible because the signature is not legally recognised? This development, associated with the setting up of a legal framework for certification-service-providers, will strongly contribute to the legal security of electronic documents. Companies, consumers, administrations, all can from now on have confidence in duly signed (and "certified") electronic documents and if needed produce them before the courts.
Besides the legal recognition of electronic signatures, the legislator has adopted a law which provides some rules on the legal framework of the certification-service-providers. This law of 9th July 2001 (which still needs to be executed by royal decrees) implements into Belgian Law the European Directive of 19th January 2000.
The law deals mainly with the certification-service-providers, i.e. companies that deliver and manage certificates or provide other services related to electronic signatures. Their activities are covered and controlled by the competent Administration within the Ministry of Economic Affairs. The Administration can provide accreditation to providers that satisfy the requirements of the law.
The law sets out the conditions according to which an electronic signature will be considered as a signature under the Civil Code. Electronic signatures can then have the same evidence force as the classic signature. The Belgian legislator has acted in a revolutionary way, as have legislators in other countries.
This legal "revolution" should establish legal security within the e-commerce field. Many people, administrations, companies already have an electronic signature, but until now many amongst them were hesitant to use it. Will they pass the turning point?